Consent Confusion

The Mississippi Court of Appeals decided Myrick v. Myrick yesterday located here.  The issue in the was that the chancellor awarded alimony although the consent to divorce did not provide for it.  The Court of Appeals reversed and remanded the alimony award finding that the chancellor could not award it since it went beyond the consent. However, the dissent argued as I have in another case that when you submit property division to the trial court, alimony is on the table also.  This case is confusing.  However, the lesson is that if you do not put the relief in the consent on irreconcilable differences for the court to determine, you may not be entitled to it. 

Alienation of Affection Unconstitutional?

In light of several U.S. Supreme Court decisions recently, there is an ongoing debate as to whether the tort of alienation of affection is constitutional.  Here is a link to a memorandum I filed on a case recently regarding this issue. 

Chain of Custody

The Mississippi Supreme Court decided Thomas Tubbs v. State yesterday.  Tubbs was accused of having molested a three-year- old girl that he and his wife were babysitting in December  2009.  One of the issues raised on appeal was that it was error to admit evidence of dna testing when there was a break in the chain of custody in the handling of the evidence taken from the child’s underpants. The Court affirms finding that  “The test of whether there has been a break in the chain of custody is ‘whether there is an indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.’”. The Court found this was not present.  In a footnote, it was also noted that [G]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.’” Deeds v. State, 27 So. 3d 1135, 1143 (Miss. 2009) (quoting U.S. v. Lott, 854 F. 2d 244, 250 (7th Cir. 1988).

Tennessee Debt Collection

In Tennessee, many of the statute of limitations run after one (1) year.  The claim for breach of contract runs in six (6) years.  The is why most debt collection cases in Tennessee wait until one (1) year has passed.  As a result, the statute of limitations runs on any claim of negligence but the contract claims (typically nonpayment) survive. 

Legal Malpractice Insurance

I have been investigating several legal malpractice claims for Plaintiffs in the past few months.  The biggest issue that keeps reoccurring is the lack of malpractice insurance.  In many cases, there is no question on liability, only damages. The problem is that there is no insurance coverage and the attorneys have only nominal amounts of liquid assets.  Malpractice insurance is designed to protect both the client and the attorney.  On several cases I have looked at, the issue has been the attorney's staff messing up.  (Note:  attorney ultimately liable in this scenario).  To me, the debate on this issue is whether a bill needs to be introduced to require malpractice insurance for attorneys in the legislature.  In many cases, I am seeing some attorneys playing fast and loose since they feel they have no risk if something happens.   

Extension of Time for Service of Process

On Thursday, the Mississippi Supreme Court reversed the Court of Appeals in Perriece Collins v. Toikus Westbrook, M.D. –  This was a med mal case where summons was not issued until the day before the 120 days ran.  Just prior to the expiration of the 120 days, the lawyer hired a  professional process-serving company in Hattiesburg and told them that process needed to be served by Saturday, April 14. The company  ended up serving a person they believed was Toikus Westbrook in Memphis Tennessee on April 13.  It turned out, though, that the man served was Toikus’ father and Toikus filed a motion to dismiss for failure to serve process.  The trial court granted the motion finding that the defendant had not been served and there was not good cause to extend the time for service.  The Court of Appeals affirmed. The Mississippi Supreme Court reversed finding that “[t]his Court has held that ‘good cause is likely (but not always) to be found when the plaintiff’s failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server."

Collective Action vs. Class Action in FLSA

Collective actions share some characteristics with class actions, but are not the same. In FLSA cases, an employee must opt in, meaning that they must affirmatively sign a document stating that they wish to be a part of the lawsuit. In class actions, under Rule 23(b) of the Federal Rules of Civil Procedure, employees are presumed to be a part of the class and any employee who doesn't want to participate in the lawsuit must opt out. Class actions cannot be used to assert wage and hour claims brought under the FLSA but employees may bring an "opt in" or "collective action" under FLSA Section 216(b). One or more employees may maintain an action, on behalf of themselves and other employees who are similarly situated, to recover damages on any of the grounds available for individual FLSA relief. Employees who do not file a written consent are not bound by the outcome of the collective action and may file a subsequent private action. The FLSA collective action may be brought in either state or federal court.